The Court of Justice of the European Union held a significant hearing today concerning legal gender recognition for trans people in Hungary

Today, the Court of Justice of the European Union (CJEU) heard the case Deldits (C-247/23), which involves a trans refugee in Hungary who has been denied legal gender recognition (LGR) since 2021. Represented by Háttér Society and the Hungarian Helsinki Committee, the complainant, who was granted refugee status Hungary in 2014, has sought judicial review under Article 16 of the EU’s General Data Protection Regulation (GDPR).

This case raises crucial questions for the CJEU: whether GDPR mandates the rectification of personal data, including gender marker, upon request; what evidence is necessary to support such requests; and whether medical or surgical interventions must be proven.

In addition to the European Commission and advocacy groups, the governments of Hungary, France, Spain and the Netherlands participated in today’s hearing, highlighting its broader implications for LGR in Hungary.

The Budapest-Capital Regional Court’s referral to the CJEU marks a pivotal moment in the ongoing battle for trans rights in Hungary. Despite the 2018 Constitutional Court decision and the 2020 European Court of Human Rights judgement affirming these rights, the Hungarian legislature has yet to implement necessary changes. LGR for both refugees and Hungarian citizens has been banned since 2020.

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe: In its final judgment, the CJEU will have the opportunity to address the discrimination faced by trans EU citizens when a gender marker that does not correspond to their gender identity is recorded in the national registrars. The case is of the utmost importance to protect the rights of trans citizens in Hungary and across the EU, notably in the context of the Hungarian ban on legal gender recognition.

The opinion of the Advocate General is expected on 12 September 2024. The CJEU’s decision is anticipated later in the autumn, and it holds significant potential to influence the legal framework for trans rights within Hungary and the broader EU.

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to Háttér Society in this case.

Read the press release by Háttér Society here.

An opinion from the Advocate General of the Court of Justice of the European Union states that documents received in the UK by Romanian trans man must be recognised in his home country.

In a significant development regarding the rights of trans people in the European Union, the Advocate General of the Court of Justice of the European Union (CJEU) has issued an opinion calling for the automatic recognition in birth certificates of new name and gender marker acquired in a Member State.

The opinion specifically pertains to the case of Arian Mirzarafie-Ahi, a trans Romanian man facing his home country’s authorities’ refusal to recognise in his birth certificate his new gender marker, acquired further to his legal gender recognition in the United Kingdom.

Advocate General Jean Richard de La Tour said it was imperative that the Romanian state record in his birth certificate entries related to his name and gender without additional procedures. This recognition, argued the Advocate General, is essential in upholding the rights to free movement and private and family life guaranteed by the European Union.

Arian’s case, supported by the ACCEPT Association, ILGA-Europe and TGEU, marks a pivotal moment in addressing the mutual equivalence of legal gender recognition (LGR) procedures across EU Member States.

The refusal of authorities in Romania to recognise Arian’s UK-issued identity documents has left him in a precarious situation, living with two different identities. Despite being a citizen of the European Union, Arian’s ability to exercise his freedom of movement and his right to private and family life is hindered by the lack of recognition of his true identity in his home country. This discrepancy exposes him to discrimination and humiliating treatment, particularly at border crossings.

Expressing anticipation for a favourable judgment from the CJEU, Arian emphasised the significance of having his identity accurately represented in official documents. “The favourable judgment of the CJEU is extremely important for me and many other Romanian and EU citizens,” he said. “It is about respecting a fundamental civil right. I am Romanian, I am in the European Union, I am trans. My documents must represent me and be updated.”

The importance of this case extends beyond Arian’s individual circumstances. It underscores the broader issue faced by thousands of individuals whose rights are compromised due to disparities in identity recognition among EU Member States. The opinion of the Advocate General reinforces the principle that rights legally obtained in one Member State must remain valid throughout the EU.

In response to the Advocate General’s opinion, Katrin Hugendubel, Advocacy Director at ILGA-Europe, added: “The AG opinion confirms what we have been pointing out for EU institutions for quite some time: without mutual recognition of legal gender recognition from one member state to another, the right to freedom of movement is not guaranteed for trans people in the EU. We are looking forward to the judgement confirming this opinion and urge the European Commission yet again to put forward legislation that will guarantee the freedom of movement for all LGBTI people under its next term. The EU directive on parenthood recognition is a very important piece of the puzzle to ensure the freedom to reside and move across the EU for LGBTI people, but more is needed to ensure that trans people can move freely across the EU and enjoy citizenship rights on equal footing with every other citizen of the EU.”

As the CJEU deliberates on this case, there is a collective hope that the judgment will align with the opinion of the Advocate General and ensure the automatic recognition of Arian’s legal gender recognition in the corresponding entries of his birth certificate by the Romanian state. However, we hope that the Court will not take into account in its judgment the questions of “marriage and parentage” emphasised by the Advocate General in his Opinion, which are not at stake in Arian’s case.

The Court of Justice of the European Union is to decide on lawsuit over the lack of provision of an option for non-binary persons, which may have a far-reaching effect

On Monday, April 29, the Court of Justice will be required to answer the question: Does GDPR and European non-discrimination law require organisations to provide an option for non-binary persons in their forms?

The hearing follows a lawsuit filed by the Mousse Association, representing 64 individuals, against France’s national state-owned railway company’s (SNCF) practice of forcing passengers to choose between the civil titles “Mr” or “Ms” when purchasing train tickets. If the association wins the case, private and public organisations in the 27 European Union States will have to either stop collecting gender markers when it is unnecessary or provide an option for non-binary persons in their forms.

This would be a significant step forward for the rights of non-binary persons, but also LGBTI people who do not identify within the gender binary.

The case relies on the General Data Protection Regulation (GDPR), invoking the principles of data minimisation and accuracy and European non-discrimination law. It aims to set a significant precedent for the inclusion of all gender identities in the European Union, by requiring forms without any reference to gender markers or with inclusive options.

According Senior Strategic Litigation Officer with ILGA-Europe, Marie-Hélène Ludwig:  “The upcoming hearing is a crucial step to put an end to the misgendering and discrimination faced by non-binary persons who are forced to choose in their day-to-day lives between two options that do not correspond to their identity.”

According to Mr Étienne Deshoulières, the lawyer representing the Mousse Association: “This procedure is not only a fight against outdated forms, but a battle for the recognition and respect of each individual in their singularity. It defends the right of every person not to be trapped in the gender binary that does not correspond to their true identity. It is a question of respect for fundamental rights to self-determination, non-discrimination and the protection of personal data.”

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to the applicants and their lawyers in this case.

In order to focus our strategic litigation efforts across Europe to fully protect and advance LGBTI rights, with this inventory ILGA-Europe wants to support members and partners across the region to identify trends and gaps in protection at the European level, which can commonly be tackled through litigation. The inventory can further strengthen cooperation and help guide our work and efforts by others in bringing forward and supporting strategic cases.

This inventory and continuous assessment of the European landscape informs ILGA-Europe’s ongoing engagement in strategic litigation through identification and support of strategic opportunities.

This inventory covers relevant SOGIESC cases from 2010 up until December 2023.

As the deadline for member states to decide whether they will join the European Commission’s lawsuit against Hungary for its introduction of anti-LGBTI legislation fast approaches, we look at the vital work ILGA-Europe has been doing behind the scenes to bring this case before the EU Court of Justice and to bring countries on board.

In June 2021, the Hungarian Parliament adopted a law that prohibits or limits access to content that portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals under 18. On 15 July 2021, the European Commission began infringement proceedings against Hungary for its potential breach with this legislation of several rights in the Charter of Fundamental Rights of the European Union and fundamental EU values. Then, on 2 December 2021, the Commission sent a reasoned opinion stating that Hungary had failed to fulfil its obligations under various EU directives. As Hungary’s response to the reasoned opinion was unsatisfactory, the Commission referred the case to the CJEU.

Next Tuesday is the deadline for Member States to give their support to the case at the CJEU, and while more member states are signing on, some key member states have not done so, and we continue our efforts to bring them on board.

It may seem that the nine member states who have given their support to the case are doing so simply because the human rights of LGBTI people are at stake, but the journey to bring an infringement procedure to the courts and for any member state makes in supporting a case against another member state is complex and fraught with obstacles. That’s why the long-term work behind the scenes of organisations like ILGA-Europe, which represents the LGBTI movement in Europe, has been key to gaining support for this infringement.

As with any litigation at the EU Court of Justice, the infringement against Hungary is rooted in protecting the EU treaties and legislative framework. The risk that violations of human rights can be dismissed, due to the fact that they do not fall within EU competences, is high. This is why from the very beginning, we equipped EU member states with the detailed arguments on how this piece of legislation violates EU law and thus allowed them to strongly come out against the law in the European Council in June 2021, right after the adoption of the law.

It is another long journey from a political statement to actually intervening at the Court. Member states, who are always reluctant to go up against each other at the EU Court, need to be furnished with a clear way forward within the EU framework. For us that meant finding the right people within the government administrations, connecting to them, and showing them the ways in which Viktor Orbȧn’s anti-LGBTI law actually contravenes the laws of the European Union, which Hungary signed up to when it became a member state. It also meant us providing information about how member states can intervene at the Court and what needs to be in place to do so.

Putting the Pressure On

When the Hungarian law was first published, alongside one of our member LGBTI organisations in Hungary, Hatter, we invested heavily in working with member states, providing them with accurate information about the law and our assessment of it. Using this, we were able to keep pressure on member states to encourage the European Commission to go forward with an infringement procedure in the first place.

The Hungarian law clearly violates the human rights of LGBTI people, such as freedom of expression and in education, but the tricky issue with EU infringement is that you need to prove exactly how a law introduced by a member state actually goes against EU legislation. For example, in the area of education the EU has very little competence. So, we knew that infringement couldn’t be based on the education element of the Hungarian law. Together with Hatter, we analysed the law at a deep level to find exactly how it went against EU legislation.

When, encouraged by a letter from 17 member states, the Commission launched its infringement against Hungary, we hosted a meeting, bringing together key players from different member states, knowing it was vitally important that they were in touch with each other, so that they could support each other in making the arguments within their administrations to support the case. Alongside our analysis, we provided technical advice about how to intervene, what the deadlines would be, and so on.

Until the moment a member state has officially declared that they’re supporting a case, it’s a very fragile process and therefore we don’t want to talk about it on a public level. We simply work hard behind the scenes to give member states everything they need to prove to their own legal administrations that they can realistically go forward, and the information on how they can do so.

The story goes back a long way

Really, this work began long before the Hungarian anti-LGBTI law was introduced. Alongside our member organisations, we have been actively educating member states so they can see they have a proactive role to play on EU level in general, and more specifically  in front of the CJEU for a long time. Back in 2018, when the Coman case came before the CJEU, seeking the extension of free movement rights to same-sex couples in the EU, we worked with ACCEPT, our member LGBTI organisation in Romania, to help prepare the case. Our further role was to establish contacts with member states, to raise their awareness of the case and what it entailed, and to encourage them to intervene.

More recently we worked in the same way with Bulgarian member organisations in helping prepare the Baby Sara case, in which the CJEU ruled that a parent in one EU country is a parent in all EU countries, and in bringing member states on board to intervene.

This is slow-burning, long-term work. It’s about building the awareness of member states of the legal contraventions involved, but also their own mechanisms to be ready to act within the often very short deadlines of the court. We have seen the leading role that the Netherlands has been playing in supporting the Commission in the infringement case against Hungary, and in reaching out to other member states. This is building on the fact that the Netherlands, encouraged and educated by ILGA-Europe alongside our member organisations, intervened in both the Coman and Baby Sara cases.

What happens if the infringement is successful?

It doesn’t end there, and nor does our work simply end if the infringement against Hungary is successful. When it’s done, we will begin our work behind the scenes to actually get the judgement implemented, which won’t be easy or immediate. Romania has yet to implement the CJEU judgement in the Coman case, which was decided upon five years ago. Bulgaria recently said it would not implement last year’s CJEU judgement in the Baby Sara case.

However, if the infringement is successful and Hungary still refuses to drop its anti-LGBTI law, which it is likely to do, this doesn’t mean the success of the case will have no immediate impact. Winning these cases means that EU legislation will strengthen the work of national organisations, and if other EU governments come up with similar legislation, which is not unthinkable, other member states will have a mechanism and framework with which to act. 

At ILGA-Europe, we deal in the certainties of the law. We examine what a procedure is about and what it is not about, and we take our work from there. We’re in it for the long term behind the scenes, working towards our goal of freedom, safety and equality for all LGBTI people in Europe and Central Asia. If we pretended that a case that is really about EU competencies is a case about something else, such as human rights compliance, we would find ourselves in murky waters. And member states do not like murky waters. They like certainty, as do the European Commission and courts.

Today, the Advocate General of the CJEU has issued an opinion in the case of J.K. vs the Polish public broadcaster company TP, stating that discrimination based on sexual orientation in employment is not acceptable under EU law.

ILGA-Europe welcomes the Advocate General of the Court of Justice of the European Union’s (CJEU) opinion, published today in the case C-356/21, concerning the refusal to continue a contract of work with a self-employed person on the basis of that person’s sexual orientation violates EU law.

The applicant, J.K., is seeking compensation from the Polish public broadcaster TP for the breach of the principle of equal treatment on the grounds of sexual orientation in the form of direct discrimination in the context of the employment relationship between the two parties. J.K is openly a member of LGBTI community, and together with his partner, he engages in the activism for LGBTIQ+ rights, including running a popular YouTube Channel.

The Defendant is the Polish public broadcaster TP, a nationwide public TV network fully owned by the State Treasury. During 2010 – 2017, the employment relationship between the Applicant and the Defendant was based on regularly concluded, consecutive short-term contracts for specific work.

In December 2017, the Applicant and his partner released a Christmas video on their YouTube Channel, where they appeared among other members of the LGBTIQ+ community. Two days after the video was posted, the Applicant received an e-mail from his immediate supervisor cancelling his scheduled shifts. He was also informed that the Defendant was not planning to cooperate with the Applicant any longer. He was replaced by another employee, who had neither the qualifications nor the experience to perform the tasks previously performed by the Applicant.

In her opinion the Advocate General firstly confirmed that self-employment is covered under the Directive and by covering the area of ‘employment and occupation’, the “Directive aims at enabling citizens to realise their potential and earn their living by providing their work”. Furthermore, in addressing the issue concerning “conditions for access to self-employment”, the AG suggests that the Directive covers both initial stage of concluding a contract, but also the provision relating to the termination of contractual relationship.  At all stages, discrimination based on sexual orientation is not acceptable.

According to Arpi Avetisyan, Head of Litigation with ILGA-Europe: “Advocate General Capeta’s opinion is a welcome confirmation that discrimination based on sexual orientation has no place under the EU Directive, including for self-employed workers. We hope the Court will follow the Advocate General’s opinion and build on it so that EU law in this area protects self-employed workers ensuring equal access to employment.  Freedom to choose a contracting party does not imply freedom to discriminate.”  

Read here the Advocate General opinion

The Court of Justice of the EU has ruled in two occasions over recent months that EU countries must protect the freedom of movement of rainbow families. This is a right all EU citizens should enjoy, LGBTI people too. In today’s blog, we bring you the state of LGBTI people’s family rights in different EU countries.

Baby Sara and Baby Sofia are too little yet to understand the change they’ve brought about for rainbow families in the EU. They don’t know that they share similar experiences. Both were born in Spain to lesbian couples and both were at risk of statelessness during the first years of their lives.

For quite some time, Sofia, daughter of Irish and Polish mothers, and Sara, daughter of British and Bulgarian mothers, did not have access to identity documents and couldn’t leave Spain. One of the reasons was that the countries of one of their mothers, Bulgaria in the case of Sara, and Poland in Sofia’s, refused to recognise the birth certificate issued in Spain because the parents in the documents were two persons of the same sex. After the Court of Justice of the EU rulings on their cases, both Sara and Sofia have helped to further the protection of rainbow families’ rights in the European Union.

First it was Baby Sara. At the end of 2021, the CJEU issued a landmark judgment in her case, stating that if one EU country recognises the child’s parental relationship, as Spain had done, then all EU countries should do the same, and so guarantee the child its freedom of movement across the region, which is a right of all EU citizens. The court decreed that Bulgarian authorities must issue an identity card or a passport to baby Sara, and that all other EU countries should recognise and follow this ruling.

In June 2022, the CJEU confirmed this in the reasoned order in the case of Baby Sofia’s, stating something very similar: when an EU country has recognised two persons of the same sex as parents of a child, then the EU country of which that child is a national, should issue identity documents to that child with both parents on them, and all EU countries should protect the right to freedom of movement of the child and their family. Poland has been told that it must now provide the child with identity documents and guarantee her and her parents the right to move and reside freely in the country.

These are protections granted in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7 and 24 of the Charter of Fundamental Rights of the EU, among others.

The cases of Baby Sara and Baby Sofia have strengthened the freedom of movement of LGBTI families across the EU as citizens of the Union, which does not necessarily translate into changes in national legislation Union. The family rights of LGBTI people vary significantly across the Union.

Have a look at the family rights of LGBTI people in the EU:

13 countries recognise marriage equality and joint adoption for same-sex couples.

They are: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, Netherlands, Portugal, Spain and Sweden.

Bonus: Some weeks ago, Slovenia’s Constitutional Court ruled that marriage is a life union of two persons, paving the way for same-sex marriage and adoption. The Court gave the Slovenian Parliament six months to comply with this decision.

In 13 countries registered partnership with similar rights to marriage is possible for same-sex couples

They are: Austria, Croatia, Cyprus, Greece, Hungary, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Spain in some regions.

Additionally, in seven countries same-sex couples have access to registered partnership with limited rights.

In 11 countries, medically assisted insemination is available for same-sex couples and singles

They are: Belgium, Denmark, Finland, France, Ireland, Luxembourg, Malta, Netherlands, Portugal, Spain and Sweden.

In Austria, only couples have access and in Latvia, only singles.

Only 4 countries of the EU, Belgium, Malta, Slovenia and Sweden, recognise trans parenthood.

The Court of Justice of the EU has stated that birth certificates issued in an EU country must be recognised across the EU, and that EU countries should protect the freedom of movement of rainbow families.

On June 24, the Court of Justice of the European Union (CJEU) issued a reasoned order establishing that when an EU country has recognised two persons of the same sex as parents of a child, then the EU country of which that child is a national, should issue identity documents to that child with both parent on them, and all EU countries should protect the right to freedom of movement of the child and their family. This is a confirmation of a previous landmark judgment, that of Baby Sara.

Poland has been told that it must now provide the child known as Baby Sofia, born in 2018 to Irish and Polish mothers, with identity documents and guarantee her and her parents the right to move and reside freely in the country.

The case arose when Poland denied citizenship to baby Sofia, daughter of two mothers, Kashka, from Poland, and Sinéad, from Ireland. In 2018, Sofia was born in Spain, where the couple had gone to receive IVF treatment. Spanish authorities issued a birth certificate with the name of the two mothers but not identity documents, as children of foreigners are not automatically entitled to citizenship in the country.

At that time, in Ireland, two women could not be recognised as parents on a birth certificate. In the eyes of Irish law, the mother was the woman who gave birth to the child. As Kasha, the biological mother was not Irish, Sofia couldn’t apply for citizenship in Ireland either.

In Poland, where rainbow families are still not recognised, authorities refused to recognise Sofia’s birth certificate, depriving her of access to citizenship and identity documents. For over two years Sofia remained without any documentary proof of any nationality, and therefore at risk of statelessness. The family was could not leave Spain, as Baby Sofia couldn’t travel without documents. Her mothers had to move house every couple of months, as they were running out of savings.

Now, the CJEU has stated that an EU country is obliged to provide identity documents to a child when the child, being a national of the country, has a birth certificate issued in another member state that designates two persons of the same-sex as their parents. All EU countries must respect the documents that allow the child and their family to exercise their right to move and reside freely with the territory of the EU. These are protections granted in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7 and 24 of the Charter of Fundamental Rights of the EU, among others.

With this reasoned order, the CJEU has confirmed the landmark judgment delivered in the Baby Sara case last year, which arose when a same-sex couple were refused a birth certificate in Bulgaria for their daughter, also born in Spain. Poland must now provide Baby Sofia with identity documents and guarantee her and her mothers the right to move and reside freely in the country.

In the meantime, Spain issued identity documents to Sofia in March 2019. Spanish law foresees a safeguard measure that allows children born in its territory who would otherwise be stateless to acquire Spanish nationality at birth. The couple also applied for Irish citizenship for Sofia through naturalisation over two years ago, but they have not received any feedback since March 2020. The Children and Families Relationship Act, which allowed both women in a same-sex couple to be automatically recognised on their child’s birth certificate, was enforced in Ireland in May 2020.

Welcoming the order, but concerned about its implementation, the lawyer for Baby Sofia’s parents, Anna Mazurczak said: “We are, of course, happy that the Court has applied the reasoning from the Bulgarian case in a Polish case. However, the Court has not been as straightforward as we had hoped. We wanted to make sure that Poland had the obligation not only to issue an ID but also to indicate the first names of same-sex parents on it.

“Through the CJEU’s reasoned order, we hoped to convince the Supreme Administrative Court of Poland that issuing an ID with one mother’s name is not enough. The CJEU has already held that different last names contained in documents issued by different member states can cause an obstacle to the right of freedom of movement. In my opinion, the different parent names on the ID card can violate freedom of movement even more.”

Recently, a draft amendment to the Family Code was submitted for public consultation in Poland, where marriage equality, same-sex registered partnerships and co-parent recognition are not recognised. While it could improve the situation of children of same-sex parents born abroad by recognising their birth certificates, it also presents a discriminatory approach towards rainbow families. There is no clear timeline for the development and implementation of these amendments.

According Arpi Avetisyan, Head of Litigation at ILGA-Europe: “The CJEU’s reasoned order is a welcome confirmation of the rights of children in rainbow families. The Polish and Bulgarian cases that have reached the CJEU, Baby Sofia and Baby Sara, are not isolated. They show the tip of the iceberg of the numerous examples of the hardships experienced by rainbow families in the EU.

“We hope that the upcoming European Commission’s legislation on parenthood recognition, by incorporating the CJEU rulings, will provide a framework for removing obstacles to freedom of movement for rainbow families. What is crucial at the present, however, is that Poland and Bulgaria put in place necessary procedures for implementing CJEU’s judgment and reasoned order as soon as possible.”

Meanwhile, in Bulgaria, the ruling in Baby Sara’s case has not yet been implemented. While on 16 May, Sofia’s Administrative Court, which had asked the CJEU for clarification in this case, ruled that Capital Municipality, Pancharevo District must issue a birth certificate with both of Sara’s mothers on it, the decision was appealed by the Municipality on 13 June. This means that to date, Sara is still without documents and at risk of statelessness.

The European Commission has referred Hungary to the CJEU over discriminatory amendments adopted in June 2021, which ban the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” to under 18s.

Today, 15 July 2022, the European Commission formally referred Hungary to the Court of Justice of the European Union due to Hungary’s unsatisfactory response to concerns raised in the “reasoned opinion” sent by the Commission in December 2021.

This “reasoned opinion” was the second stage of the infringement process launched against Hungary in July 2021, in which the Commission outlined its concerns about the amendments breaching various aspects of EU law, asked for clarification over certain issues, and requested the amendments be brought in line with EU law.

In particular the Commission is concerned about discrimination against LGBTI people when it comes to various areas of EU competence, including the freedom to provide services, the free movement of goods, the Audiovisual Media Services Directive, the e-commerce Directive, freedom of expression and information, the right to respect of private life, and the right to non-discrimination.

ILGA-Europe’s member organisation, Hátter Society has reported that the amendments have already had a severe impact on LGBTI people in Hungary, as media service providers, bookshops, libraries, schools, and other actors covered by the law have begung to implement it voluntarily, in fear of sanctions. The discriminatory amendments and government campaigning around them has also resulted in a stark increase in hate crime against LGBTI people, and the amendments also leave LGBTI people and organisations at risk of arbitrary legal proceedings.

The Commission has found that Hungary’s response to their concerns in relation to equality and the protection of fundamental rights is unsatisfactory and does not include any commitment to remedy the incompatibility of the amendments with EU law, and have therefore decided to refer Hungary to the EU’s Court of Justice.

According to ILGA-Europe’s Executive Director, Evelyne Paradis: “It is encouraging to see the European Commission strongly defending EU law and the principle of non-discrimination when it comes to the treatment of LGBTI people. These amendments breach a variety of EU laws in a wide range of areas, and have already had a devastating impact on the rights of LGBTI people in Hungary. For too long the Hungarian government has been using LGBTI people as a political scapegoat; the rule of law must prevail in order to stop such an abuse of power. Now it is over to the Court of Justice of the European Union to live up to its legal responsibilities and defend EU law and the right of LGBTI people to live free from discrimination.”

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To learn about the anti-LGBTI amendments in Hungary, and how the media, bookshops, libraries, schools etc. are implementing them, read this alarming report.

Read the Commission’s press release, which explains in more detail about which EU laws are breached here.

When an EU country recognises a child and its same-sex parents as a family, all EU countries should recognise them as such, so to guarantee their freedom of movement. This is what the EU’s top court ruled in December. But how this case has advanced LGBTI rights in the European Union and what comes next for rainbow families?

At the end of 2021, the Court of Justice of the European Union (CJEU) ruled that if one EU country recognises the child’s parental relationship, then all EU countries should do the same to guarantee the child its freedom of movement across the region, a right of all EU citizens.

The ‘Baby Sara’ case, as it has become known, will have a long-term impact on rainbow families in the EU. Born in Spain to a lesbian couple, baby Sara was denied citizenship there because neither of her Bulgarian and Gibraltarian mothers are of Spanish descendent. Under the British Nationality Act, Gibraltar-born parents cannot transfer UK citizenship.

So, Bulgaria was the one reasonable option left for the family. But same-sex unions are not recognised in Bulgaria and two persons of the same sex cannot be registered as the parents of a child. The Bulgarian authorities thereby refused to issue a birth certificate on which the parents are two women, choosing to not recognise a valid EU birth certificate from another member state. This left baby Sara at risk of statelessness. She had no identity documents and could not leave Spain.

After December’s CJEU judgment, the Bulgarian authorities are obliged to issue an identity card or a passport to baby Sara, a ruling that all other EU countries should recognise.

So, what are the real implications for rainbow families?

Following the CJEU ruling, Baby Sara and her mothers must be recognised as a family for the purposes of EU law, and must be able to enjoy freedom of movement in all EU countries. Freedom of movement, the right of persons to move and reside freely within the territory of EU member states, is a right of all EU citizens.

This is the first case where the CJEU has ruled on cross-border recognition of parental ties in rainbow families. It stated that it is against the fundamental rights of the child to be deprived of the familial ties established in an EU country when traveling in the EU. The family ties were not recognised in baby Sara’s birth cert application because the parents are two persons of the same sex.

The court also clarifies that national identity cannot be used as an argument to deny freedom of movement to rainbow families. This means that it does not undermine Bulgaria’s national identity to recognise parenthood established in Spain, another EU country, an argument often brought by those countries that do not recognise same-sex families.

In other words, the Court has not obliged Bulgaria to allow and recognise same-sex couples in its territory as the parents of a child. Rather, it simply requires Bulgaria to recognise the familial ties among the members of rainbow families — as these have been established in another EU country — when the family moves to its territory.

Finally, the ruling gave legal endorsement to European Commission’s President Ursula von der Leyen 2020 State of Union address, when she affirmed that “If you are parent in one country, you are parent in every country”.

Will the Baby Sara judgement immediately free up movement for rainbow families in the EU?

Implementation is the crucial part of any European court ruling, and often this is fraught with difficulties and time consuming.

The work of the CJEU has finished for now. The Bulgarian authorities must find a solution and decide on the type of identity documents for Sara. This might take time, and considering the situation of LGBTI rights in the country (Bulgaria is in 37th position out of 49 in our 2021 Rainbow Map of legal rights for LGBTI people in Europe), it may mean additional hurdles for baby Sara’s family and further litigation. For example, the Coman case, also related to same-sex unions and freedom of movement, has not been implemented by Romania after three years since the judgment.

However, if Bulgaria or other countries that do not recognise rainbow families refuse to implement the CJEU judgment, the European Commission can start infringement procedures, as these countries would breach EU law. If carried to their last step, this can mean financial penalties against Bulgaria.

So, it’s not as easy as a judgement being made and every country in the EU suddenly opening its borders to rainbow families. But, the world watched the judgement in the Baby Sara case closely, and it was a major step forward in the recognition of the children of same-sex parents across the European Union. We will be watching the implementation of this case very closely too, and will report on how it is progressing.

At the same time, the European Commission is in the process of working on new legislation on the EU-wide recognition of parenthood as well as on guidelines on ensuring freedom of movement for all. We will work hard to ensure that the judgment will be fully reflected and respected there, with the hope that one day soon, all rainbow families will be able to enjoy the rights that every other family in the EU take for granted.

It was a year of further lockdowns, of new strains of the COVID virus, and the uncertainty they have brought, and most of all, enormous reverberations of the unprecedented events of 2020 on people’s lives.

At ILGA-Europe, when the pandemic first kicked in, our motto was ‘the work goes on’, and that work most certainly continued apace throughout 2021, with the growth of a perceived east-west divide in Europe over LGBTI rights; infringement procedures taken by the European Commission against Hungary and Poland because of their anti-LGBTI laws and programs; a sharp rise in the demonisation and isolation of trans people from the women’s movement; and an overall rise in authoritarian regimes seeking to instrumentalise LGBTI lives to limit the rights of others.

So, it’s perhaps strange that our guest in this episode, ILGA-Europe’s Executive Director, Evelyne Paradis finds great hope for the LGBTI movement amid the storm. Listen now, and find out why.

In a landmark judgement, the Court of Justice of the European Union has ruled that a child and its same-sex parents must be recognised as a family, the child should be issued a Bulgarian passport, and the family should have free movement in all Member States of the European Union.

Today, December 14, the Court of Justice of the European Union (CJEU) ruled that if one EU member state recognises a parental relationship between a child and its parents, then all member states should, in order to give the child it’s right to freedom of movement.

The case ‘Stolichna obshtina, rayon Pancharevo’ arose when a same sex couple were refused a birth certificate in Bulgaria for their infant daughter, who was born in Spain. The Bulgarian authorities asserted that the couple, one of whom is Bulgarian, could not be registered as parents on the child’s birth certificate, leaving the family in legal limbo.

Bulgarian born Kalina Ivanova* and Gibraltar-born Jane Jones* are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Kalina or Jane is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act (1981), cannot transfer citizenship to her daughter.

Therefore, Kalina requested Bulgarian citizenship for their daughter. Bulgarian authorities rejected a request for citizenship of the child, the application, arguing that a child cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.

Sara was therefore deprived of Bulgarian, and therefore European citizenship, and was at risk of statelessness. Currently, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents restricts Sara’s access to education, healthcare, and social security in Spain.

In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.

Today the CJEU ruled that it is contrary to the fundamental rights guaranteed by Articles 7 and 24 of the Charter for the child to be deprived of the relationship with one of her parents when exercising her right of free movement or for her exercise of that right to be made impossible or excessively difficult on the ground that her parents are of the same sex.

The ruling asserts that the Bulgarian authorities are obliged to issue an identity card or a passport to Baby Sara, which all other EU Member States are obliged to recognise.

Welcoming the ruling, Baby Sara’s parents said: “We are thrilled about the decision and cannot wait to get Sara her documentation and finally be able to see our families after more than two years. It is important for us to be a family, not only in Spain but in any country in Europe and finally it might happen. This is a long-awaited step ahead for us but also a huge step for all LGBT families in Bulgaria and Europe.

“Thank you so much to the LGBT Deystvie organisation in Bulgaria and especially to our legal representation, Denitsa Ivanova and Veneta Limberova for fighting for our family and countless others in our position. Thanks too all the people and organisations who supported us in this process: ILGA-Europe, NELFA, ACCEPT Romania and many others.”

According to Arpi Avetisyan, Head of Litigation at Europe’s leading LGBTI rights organisation, ILGA-Europe, which intervened in the case: “We are very pleased with CJEU’s judgment this morning. It gave legal endorsement to the EC President Ursula von der Leyen DL’s words, delivered during last year’s State of the Union address: ‘If you are a parent in one country, you are parent in every country’. The judgment has brought long-awaited clarification that parenthood established in one EU Member State cannot be discarded by another, under the pretence of protecting the “national identity”. This is a true testament to the EU being a union of equality and we look forward to seeing rainbow families enjoying their right to freedom of movement and other fundamental rights on equal footing to anyone else. It is important that the judgment is implemented imminently, not only for baby Sara and her family, but also for other families facing similar struggles across the EU.”

*Names have been changed.

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For comment, contact Ana Muñoz media officer at ana@ilga-europe.org and +32493356055

The European Court of Human rights has ruled that the refusing a mother custody of her youngest child on the grounds of her sexual orientation to be discriminatory and a violation of her right to private and family life.

In a judgement released today on the case of X. v Poland, the European Court of Human rights found the refusing a mother custody of her youngest child on the grounds of her sexual orientation as discriminatory and a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the applicant.

The case concerned custody arrangements of applicant’s youngest child following her divorce. The main consideration of the courts was that the applicant, the mother of the child, was in a relationship with another woman. She alleged that the courts had acted in her former husband’s favour because of her same-sex relationship.

The Court found that there was “a difference in treatment between the applicant and any other parent wishing to have full custody of his or her child”.  Moreover, the Court considered that the discriminatory reference to the importance of a male role model for the boy’s upbringing, which was one of the decisive factors in the dismissal of the applicant’s requests for custody, had outweighed the other arguments: child’s young age, strong bond with the applicant and wellbeing while living with his mother. This reliance on the male role model was discriminatory.

Taking into account that throughout court proceedings, applicant’s sexual orientation and relationship with another woman had been repeatedly referred to as a ground for refusal,  the Court concluded that, in “refusing to grant the applicant full parental rights and custody rights in respect of [the youngest child], the domestic authorities made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention.”

ILGA-Europe had intervened in this case jointly with the International Court of Justice (ICJ), the International Federation for Human Rights (FIDH) and Network of European LGBTIQ* Families (NELFA).

According to Arpi Avetisyan, ILGA-Europe’s Head of Litigation, “Today’s judgment confirms the rights of LGBTI parents to their children on an equal footing as everyone else. The best interests of children to receive parental love and be cared for should prevail in custody considerations, irrespective of parents’ sexual orientation.”

The applicant was awarded EUR 10,000 in respect of non-pecuniary damage. 

FIND MORE ABOUT:

• our strategic litigation work
• our third party interventions before the ECtHR

On 5 June 2018, the Court of Justice of the European Union (CJEU) issued a landmark judgement against Romania, recognising that the term spouse includes same-sex spouses under EU freedom of movement laws. Three years later, Clai Hamilton, spouse of Romanian citizen Adrian Coman, has not been granted residency yet. Now they’ve brought the case to the European Court of Human Rights (ECHR). Here, Adrian Coman talks about the original case, and his hopes with this latest development.

When Adrian Coman and Clai Hamilton first met, they did not know that the love they’d found would ultimately change the lives of rainbow families in the European Union. In 2010, while working at the European Parliament in Belgium, Adrian married Clai, a US citizen living in Brussels. Two years later, they decided to move and settle together in Adrian’s home country of Romania.

However, the Romanian authorities chose not to follow EU laws and refused to recognise their marriage, so Clai was not able to apply for a residence permit. Almost a decade on, the situation remains the same.

“I’m sorry to say that change in Romania has always come from abroad,” Adrian Coman told us in an interview for The Frontline, ILGA-Europe’s podcast. It was a decade ago, in 2001, that Romania repealed Article 200, which criminalised homosexual relationships, after receiving pressure from the EU with whom accession talks were taking place. Since then, the one relevant LGBTI related legal change in Romania has been an amendment to the Civil Code, prohibiting same-sex marriages and partnerships, and the recognition of those if they happened abroad.

“What I see is a resistance to change,” says Adrian of his home country. “Some governments think that a majority of Romania is against anything that has to do with LGBT people, therefore resist been seen as operators of change.”

A landmark court case

In 2012 the couple turned to courts to have their marriage recognised for Clai to be able to have residence rights. Six years later, on 5 June 2018, the Court of Justice of the European Union (CJEU) delivered a judgment in favour of Adrian and Clai. It said that the definition of ‘spouse’ in EU law on freedom of movement includes same-sex couples. EU citizens and their families have the right to travel and reside freely within the territory of Member States.

The CJEU’s judgment meant that all EU countries must treat same-sex couples in the same way as different-sex couples when they exercise freedom of movement rights.

“This was a huge achievement,” says Arpi Avetisyan, Head of Litigation at ILGA-Europe. Arpi remembers celebrating when the judgement was published. It was great news for Adrian, Clai and all rainbow families in the EU. There was a sense of happy ending, not only with the case, but also with the positive media exposure it received. Other couples in a similar situation began to tell their stories.

A rollercoaster struggle

However, it’s 2021 and Romania still has not implemented the EU judgment. Adrian and Clai’s marriage has not been recognised in the country and Clai remains unable to apply for residency.

“This case has been like a rollercoaster in a way,” says Arpi Avetisyan. “The struggle continues to ensure the judgment come a reality.”

Now, Adrian and Clai, with the help of ACCEPT , have submitted their case to the European Court of Human Rights (ECHR). “We are very optimistic,” says Adrian about the forthcoming decision. “While we never know how courts will decide, I think all the measures from the higher courts have been favourable. And it’s not surprising because I think the law [in Romania] has not been keeping up with the reality in society. We’ve only seen support and that’s the real change.

“One reason why we’ve stayed in it for so long it’s because we realised it’s no longer about the two of us. Clai and I are very lucky. We live in New York. I happen to be an American citizen at the same time, and we are here, recognised as spouses. We have the choice of not going to Romania now, of waiting… but other people don’t. We recognise the privileges that we have and we have to use them for those who are not in the same situation.”

Watch this space for the European Court of Human Rights decision on Adrian and Clai’s case, and listen to our full podcast below.

We meet Kalina and Jane, from Bulgaria and the UK respectively. Because their daughter Sara was born in Gibraltar, she cannot claim UK citizenship via Jane, so the couple applied to have her registered in Bulgaria. The Bulgarian authorities refused, therefore leaving Baby Sara stateless.

Kalina and Jane brought a case against the Bulgarian authorities to the EU Court of Justice, which was heard in March 2021. They join us to talk about their current situation, the case, and what it means to their family. We’re also joined by Arpi Avetisyan, Head of Litigation at ILGA-Europe, to talk about the wider implications of the case.

Advocate General of the Court of Justice of the European Union’s opinion says that Bulgaria’s lack of recognition for same-sex parented families cannot justify a violation of EU freedom of movement law

Leading LGBTI rights organisations in Europe are very encouraged by the Advocate General of the Court of Justice of the European Union’s (CJEU) opinion, published yesterday in the case of V.M.A. v Stolichna obshtina, in which a same-sex couple who were refused a birth certificate in Bulgaria for their newborn daughter claim the Bulgarian authorities are violating the rights of a European citizen on the grounds of sexual orientation, namely to free movement, and to private and family life. This constitutes a breach of the fundamental principles of the EU.

The Advocate General (AG) clearly states that the refusal of the Bulgarian authorities to draw up the requested birth certificate constitutes an impediment to the rights which EU law confers on V.M.A. and that child.

According to the AG, the obligation to recognise the family relationships, which are established in Spain, for the sole purpose of applying the EU right to freedom of movement of citizens does not alter the concept of parentage or marriage under Bulgarian family law, and thus does not threaten the fundamental expression of national identity, while removing a significant number of the obstacles to freedom of movement, such as the uncertainties surrounding the right of residence of the child’s British mother or the possibility for that mother to move freely with the child.

Having regard to the limited impact of that obligation on the Bulgarian legal order, the refusal to recognise the parentage of the child as regards V.M.A. and her wife for those purposes goes beyond what is necessary to preserve the objectives relied on by Bulgaria. Bulgaria thus may not refuse to recognise the parentage of the child for the purpose of applying the EU secondary law relating to the free movement of citizens on the ground that Bulgarian law does not provide for either the institution of same-sex marriage or the maternity of the wife of a child’s biological mother if the child is a Bulgarian national.

According to Katrin Hugendubel, Advocacy Director of ILGA-Europe: “The opinion is pointing in the right direction, as it clarifies that parentage established in one member state must be recognised for reasons of freedom of movement across the EU, and all EU citizens and their families equally enjoy freedom of movement. As already confirmed in Romanian Coman case, arguments on “national identity”, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.” 

Eleni Maravelia, President of NELFA, the Network of LGBTIQ* Families Associations, says: “NELFA is very pleased with the opinion of the AG, who is giving a clear answer to Bulgaria and all EU member states that EU law has to be respected at all times when dealing with cross-border issues, even when it comes to rainbow families with children who might not be covered by the national legislation. We are hoping the final decision by the court will take under consideration the AG opinion and build on it so to include the protection of the rights of the child.”

According to attorney, Denitsa Lyubenova, legal representative of the family and member of the Legal Programme of LGBTI Organisation, Deystvie: “We are still awaiting the ruling of the Court of Justice of the European Union, but we believe that the Advocate General’s opinion is a step forward recognising same-sex families across Europe. Law changes slowly, with small steps and a lot of perseverance. A ruling in the direction set by the Advocate General will bind Bulgaria to establish the family relationship between the child Sara and her two mothers. Maybe it all starts now.”

Further information:

• Read more about the case here. 

Almost three years after the European Court ruled that Romania must recognise a same-sex couple under EU freedom of movement legislation, its government is yet to implement the judgement.

In June 2018, the Court of Justice of the European Union (CJEU) issued a landmark judgement, recognising that same-sex spouses are also spouses under EU freedom of movement laws. Almost three years later, Romania has still not respected the judgement by granting the male spouse of a Romanian man a residence permit in Romania. Together with Romanian LGBTI oganisation ACCEPT, the couple has now taken the case to the European Court of Human Rights to address this failure of implementation of the CJEU judgement and finally get their rights recognised.

In the ground-breaking judgment of Relu Adrian Coman and Others v Inspectoratul General pentru Imigr?ri and Ministerul Afacerilor Interne (Coman and Others), delivered on 5 June 2018, the CJEU clarified that the term ‘spouse’ in the EU Freedom of Movement Directive (2004/38/EC) includes same-sex spouses, and that Romanian authorities must ensure that EU law is implemented equally and duly, without discrimination based on one’s sexual orientation. In practice this means that Romania must recognise same-sex partnerships from other EU countries, and therefore needs to grant a residence permit to Adrian Coman’s partner and others in similar situations.

In line with the CJEU judgment, the right to family life of same-sex couples was reaffirmed by the Constitutional Court of Romania in July 2018, yet Romania continues to refuse to acknowledge the judgments and provide the residence permit. ACCEPT has brought this to the European Commission’s (EC) attention by submitting a complaint about a second case, similar to Coman. However, what we keep hearing from the EC is that in order to start infringement procedure, the EC would have to establish a ‘general and consistent’ non-application of EU legislation, which according to the services is difficult to establish.

According to Teodora Ion Rotaru of ACCEPT Romania: “We rely on the European Commission to ensure that member states correctly implement hard-won rights, like those enshrined by the Coman judgement. The CJUE was adamant that rights pertaining to the protection of rainbow families need to be applicable in practice, and the role of European institutions is even more important when national governments and legislatures fail to protect the rights of European citizens. Even if we now rely on the European Court of Human Rights to enforce EU law in Romania, we trust that the European Commission will step in and ensure that its role as the guardian of the treaties is fulfilled by engaging in a productive dialogue with Romanian authorities.

Arpi Avetisyan, Head of Litigation at ILGA-Europe, added: “The Coman judgment brought a long-awaited clarification on the term ‘spouse’ and established that same-sex spouses enjoy the freedom of movement on equal footing across the EU. Yet the applicants themselves continue to suffer and are unable to exercise their right, due to blatant violations by the Romanian government of its obligations under EU law. CJEU judgments are part of EU law, which has supremacy over national law and must be applied to all national acts.

“It is a very welcome step that the European Court moved ahead with the consideration of the case in timely manner. We hope that the European Commission will join the efforts to ensure that not only the applicants themselves, but other same-sex couples in a similar situation will finally see their freedom of movement and family rights protected.”

Katrin Hugendubel, Advocacy Director with ILGA-Europe, concluded: “We are very disappointed by the fact that the EC is not acting strongly on ensuring that Romania is fully respecting the important judgement in the Coman case. It is hard to see how continuing to ignore such a public and landmark judgement three years later does not point to a systematic refusal to apply the principle of non-discrimination clearly established by the CJEU. It is a sad day for the EU that the couple now is turning the ECHR to find justice.”

Background

The applicants Adrian Coman (a Romanian national) and Clai Hamilton (a US citizen) got married in 2010, in Belgium. Two years later, the couple applied to the Romanian authorities for a residence permit so that Clai could join Adrian, to live and work in Romania as the spouse of an EU citizen. This request was refused and the Romanian Consulate in Brussels also refused to transcribe their marriage certificate into the Romanian register.

The couple filed a discrimination complaint in 2013, and deliberations over which court would hear the case at first instance began. In 2015, the first hearings took place in Bucharest. The preliminary question raised by Adrian and Clai concerned Civil Code Article 277 and the constitutionality of denying recognition to married same-sex couples in Article 277(2), while Article 277(4) notes the applications of freedom of movement. On 18 December   2015, the District Court referred the case   to the Constitutional Court, for a review of the constitutionality of the relevant provisions of the Civil Code and stayed the proceedings until delivery of a decision by the Constitutional Court. The Constitutional Court referred questions for a preliminary ruling to the CJEU, which delivered a judgment on 5 June 2018.

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Further information:

• Read more about the Coman case here and a Q&A here. 
• Find out more about our litigation work.

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

Photo credits: Rudolf Costin

Authorities in Bulgaria have not recognised the valid EU birth certificate of the child of a same-sex couple. On February 9, the Court of Justice of the European Union must clarify that if you are a parent in one EU country, you are a parent in every EU country.

On Tuesday, February 9, the Court of Justice of the European Union (CJEU) will hear the case of a same-sex couple who were refused a birth certificate in Bulgaria for their newborn daughter. The authorities claimed that a same-sex couple cannot be registered as parents on the birth certificate. ILGA-Europe have been supporting Bulgarian LGBTI rights organisation, Deytsvie in bringing the case forward and is, through their campaign #parentswithoutborders, raising awareness of the lack of protection of same-sex parents and their children within the EU.

Bulgarian born Kalina Ivanova* and Gibraltar-born Jane Jones* are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Kalina or Jane is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act (1981), cannot transfer citizenship to her daughter.

Therefore, Kalina requested Bulgarian citizenship for their daughter. Bulgarian authorities rejected the application, arguing that a baby cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.  

Sara has been deprived of Bulgarian, and therefore European citizenship, and is at risk of statelessness. At the moment, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents will restrict Sara’s access to education, healthcare, and social security.

According to the case taken to the CJEU, the Bulgarian authorities are violating the rights of a European citizen on the grounds of sexual orientation, namely to free movement, and to private and family life. This constitutes a breach of the fundamental principles of the EU.

In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.

According to Denitsa Lyubenova, attorney-at-law and co-founder of Deytsvie: “Countries in Central and Eastern Europe are derogating from basic human rights guaranteed by the European Convention on Human Rights and the Charter of the Fundamental Rights of the EU. This weakens the EU position as a guardian of human rights. With this case we have the chance to realign the practice in EU countries with the principles set out in the EU Treaties and to protect the rights of LGBTI families and their children moving across Europe. and the Court needs to reconfirm that Rainbow families are as valid as all others.”

Arpi Avestisyan, Head of Litigations at ILGA-Europe added: “In her State of the Union 2020 address, President Ursula von der Leyen said: ‘If you are parent in one country, you are parent in every country’. However, thousands of same-sex parented families in the EU currently live at risk of not having the parental relations recognised and face legal turmoil due to differences in member states’ national systems.”

Avestisyan continued: “Parents cease to exist when moving from one EU member state to another, where birth certificates from another member state are not recognised. These situations create severe obstacles for children in exercising the rights to which they are entitled under European and international law.

“Through this case, the CJEU has the opportunity to clarify that parentage established in one member state must be recognised across the EU, and all EU citizens and their families equally enjoy freedom of movement. As already confirmed in Romanian Coman case, arguments on “constitutional identity”, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.” 

*Names have been changed.

The longest hearing I’ve attended before the @EUCourtPress – over 4 hrs long! #Bulgaria continue arguing national identity prevalence with “traditional marriage” between a man and a woman at the heart of it. https://t.co/biBgEb24i7

— Arpi Avetisyan (@ArpiAvet) February 9, 2021

In a judgement delivered on 23 April 2020, the European Court of Justice (CJEU) held that statements made by a lawyer during a radio programme, saying he would never recruit a “homosexual” or wish to use the services of such persons, fall within the material scope of EU Directive 2000/78 (‘the anti-discrimination directive’).

he case was brought by Rete Lenford Avvocatura Per I Diritti LGBT (Lawyers For LGBT Rights), an association of about 150 lawyers founded in 2007 to take representative action on the behalf of LGBT people before national and international jurisdictions, and to ensure enforcement of LGBT rights in Italy.

Having taken the view that that lawyer had made remarks constituting discrimination on the ground of the sexual orientation of employees, Rete Lenford brought proceedings in the Italian courts against him for damages. The action was successful at first instance and the ruling was upheld on appeal. The lawyer went on to appeal before the Italian Supreme Court of Cassation, which then sought a preliminary ruling from the CJEU on the interpretation of the concept of ‘conditions for access to employment … and to occupation’, within the meaning of the anti-discrimination directive.

Importantly the Court noted that the lawyer’s statements may fall within the ambit of the anti-discriminiation directive, even if no recruitment procedure had been opened or planned at the time when the statements were made, where the link between the statements and the conditions for access to employment is not hypothetical.

Because discriminatory statements can have a chilling effect on prospective employees, therefore difficult to have an identifiable victim, the Court noted that where national law provides relevant conditions,  an association, as in this case Rete Lenford, may bring legal proceedings for a finding of discrimination and for a sanction to be imposed. 

Welcoming the judgement, Senior Litigation Officer with ILGA-Europe Arpi Avetisyan said: “I’m extremely pleased that CJEU reaffirmed protection against homophobia in employment and made clear that discriminatory statements in employment and occupation under the EU law are strictly prohibited. The Court sent a strong message that EU law does not tolerate discrimination based on sexual orientation and safeguards “the principle of equal treatment in employment and occupation, and the attainment of a high level of employment and social protection”. Congratulations to Rete Lenford on the victory and for setting an important milestone in clarification of EU law.”

According to Miryam Camilleri, President of Avvocatura per i Diritti LGBTI – Rete Lenford: “We are overwhelmed by this result. This Judgement represents a great advancement in the enforcement of the protection of LGBTI rights in the EU and in each European Country – the re-affirmation of the right not-to-be-discriminated against and the empowerment of many fights conducted in the name of LGBTI individuals. At the same time, we are particularly honored to have provided the opportunity for the Court to take this historic decision. It’s implications expand beyond the boundaries of LGBTI rights, and serve the interests of associations and NGO’s working in other discriminated against sectors.”

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• Find out more about the case and the Associazione Avvocatura per i diritti LGBTI – Rete Lenford.
• Find out more about our strategic litigation work.
• Find out more about the judgement and read the full judgement here.

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For comment, contact Arpi Avetisyan, Senior Litigation Officer with ILGA-Europe at arpi@ilga-europe.org

The Court of Justice of the European Union has just made a landmark decision, saying that a lawyer who declared that he would never hire a “homosexual” person in his law firm was discriminating under an EU employment directive. Meet activist Emiliano Ganzarolli, from the powerhouse group of LGBT lawyers who took the case.

Emiliano Ganzarolli is a member of Rete Lenford Avvocatura Per I Diritti LGBT (Lawyers For LGBT Rights) an association of about 150 lawyers founded in 2007 to take representative action on the behalf of LGBT people before national and international jurisdictions, and to ensure enforcement of LGBT rights in Italy.

The association has notably been active in the fight for marriage equality, and the implementation of a civil partnership framework for same-sex couples.

“In 2007 there was nothing in the Italian law concerning either civil unions or marriage and the association itself was actually founded because of this lack in our system,” says Emiliano in an interview filmed for the Voices of ILGA-Europe project last October. “It brought together lawyers and activists from the civil society to bring cases up to the constitutional level. In 2010 the constitutional court was asked to deliver a judgement on the possibility or not to have equal marriage in Italy. The case was not successful, we still don’t have equal marriage in Italy, but that was the beginning of many battles the association took.”

Recently, the Association was involved with the first case in Italy involving discrimination in an employment context, after an attorney declared during a radio interview that he would never hire a homosexual person in his law firm.

The case was brought in front of a tribunal in the Court of Appeal by Rete Lenford. “It was successful in the first instance, and the second, and then the case was appealed in front of the Supreme Court in Italy,” Emiliano explains. “The Supreme Court referred the case to the Court of Justice of the European Union (CJEU).

“When we received the communication that the Supreme Court had referred the case to the CJEU, it was the immediate reasoning to involve an umbrella association, somebody able to actually properly talk at the same level with the European institutions. So it came naturally to involve ILGA-Europe in this. ILGA-Europe’s litigation department has been extremely supportive, especially putting us in contact with the other EU countries.”

Two distinct questions arose before the Italian Supreme Court: Firstly, does legislation prohibiting discrimination in access to employment also cover a general statement made on the radio to the effect that the interviewee would not recruit homosexuals to his law firm? Secondly, in the absence of an identifiable victim, is it possible for Rete Lenford to seek to enforce the prohibition of discrimination in employment and occupation, including through the award of damages?

In a judgement delivered on 23 April 2020, the CJEU decided on behalf of Rete Lenford. Importantly the Court noted that the lawyer’s statements may fall within the ambit of the European Union anti-discrimination directive, even if no recruitment procedure had been opened or planned at the time when the statements were made.

Because discriminatory statements can have a chilling effect on prospective employees, therefore difficult to have an identifiable victim, the Court noted that where national law provides relevant conditions, an association, as in this case Rete Lenford, may bring legal proceedings for a finding of discrimination and for a sanction to be imposed.

Welcoming the judgement, Senior Litigation Officer with ILGA-Europe Arpi Avetisyan said: “I’m extremely pleased that CJEU reaffirmed protection against homophobia in employment and made clear that discriminatory statements in employment and occupation under the EU law are strictly prohibited. The Court sent a strong message that EU law does not tolerate discrimination based on sexual orientation and safeguards “the principle of equal treatment in employment and occupation, and the attainment of a high level of employment and social protection”. Congratulations to Rete Lenford on the victory and for setting an important milestone in clarification of EU law.”

As part of our advocacy to ensure that EU law is applied without discrimination and that CJEU judgments recognising LGBTI rights, like the Coman judgement, are properly implemented in all EU Member States, ILGA-Europe is holding a webinar on bringing cases to the European Commission.

Bringing complaints before the European Commission serves as a basis for raising awareness on the obstacles faced by LGBTI people, and for initiating a formal infringement procedure against a Member State to help ensure its compliance with EU law.

This webinar is for all LGBTI organisations and activists in the European Union. Our speakers and experts will share their experience of bringing cases to the European Commission on discriminatory application of EU law and failure of implementation of CJEU judgments, as well as provide guidance on EU law aspects that can be challenged through the procedure.

The webinar will take place on Thursday, 30 April 2020 between 10:00 and 11:30 CEST.

Moderated by Arpi Avetisyan, Senior Litigation Officer at ILGA-Europe, the panel will host:

• Teodora Ion-Rotaru – Executive Director of ACCEPT Romania,
• Professor Alina Tryfonidou – Professor of Law at the University of Reading, and
• Etienne Deshoulières – Deshoulières Avocats Associés Law Firm.

Contributions from European Commission experts:

• Maria Vilar Badia, Legislative Officer at DG JUST of the European Commission,
• Bénédicte Marquet, Legal and Policy officer at DG JUST of the European Commission, Unit – Union citizenship rights and free movement.

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• To attend the webinar, register here in advance.
• If you want to know more about the Coman judgement and the complaints procedure please consult ILGA-Europe’s blogpost or contact ILGA-Europe Senior Litigation Officer Arpi Avetisyan arpi@ilga-europe.org.
• Read more about our work on strategic litigation.

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About the speakers:

Teodora Roseti-Ion-Rotaru, Executive Director of ACCEPT Romania

Teodora Roseti-Ion-Rotaru is the Executive Director of ACCEPT Association. She joined the organisation in 2013, as a volunteer. Throughout her time at ACCEPT, Teodora coordinated programs, the relationship with the media, partners and the community, and led notorious public campaigns, chiefly the national communication regarding the Coman case (2016-2018) and the boycott campaign regarding the national referendum to ban same sex marriage in the Romanian Constitution (2018). A graduate of the European Administrative Affairs program at the College of Europe (Bruges), where she specialized in interest representation and Europeanization, Teodora is a convinced federalist and fights illiberalism and shallow Europeanization in eastern accession member states through activism for democracy and human rights.

Professor Alina Tryfonidou, Professor of Law at the University of Reading

Professor Alina Tryfonidou joined the University of Reading as a Lecturer in September 2011, after being a Lecturer in Law at the University of Leicester from 2007 to 2011. She taught European Law as a Visiting Tutor (2005-2007 and 2010-2011) at King’s College London. Professor Tryfonidou obtained her LLB (2001), LLM (2002) and PhD (2008) from King’s College London and is an Associate of King’s College (AKC) since 2008. She is a non-practising member of the Cyprus Bar since 2003, a Fellow of the Centre of European Law at King’s College London since 2007, and a Fellow of the Higher Education Academy (FHEA) since 2016. In 2004, Professor Tryfonidou completed a traineeship at the European Commission in Brussels and in 2010-2011 she was an Institute of Advanced Legal Studies (IALS) Visiting Fellow in London. Professor Tryfonidou’s research interests focus on EU free movement law and the protection of LGBT+ rights.

Etienne Deshoulières, Deshoulières Avocats Associés Law Firm

Founder of the Deshoulières Avocats Associés Law Firm, also Research Associate at the Law Research Institute of University Panthéon-Sorbonne Paris I and Professor at the University Panthéon-Assas Paris II. He is currently involved in 60 LGBT cases before the French and European tribunals.